1
EXHIBIT 10.12
STATE OF GEORGIA
COUNTY OF GWINNETT
LEASE CONTRACT
THIS LEASE, made this 4th day of June, 1998, by and between XXXXXXX X.
XXXXXXX (hereinafter called "Landlord") and HEADHUNTERS, LLC, (hereinafter
called "Tenant");
W I T N E S S E T H:
PREMISES 1. The Landlord, for and in consideration of
the rents, covenants, agreements, and stipulations
hereinafter mentioned, reserved, and contained, to be
paid, kept and performed by the Tenant, has leased
and rented, and by these presents does lease and
rent, unto the said Tenant, and said Tenant hereby
agrees to lease and take upon the terms and
conditions which hereinafter appear, the following
described property (hereinafter called the
"Premises"), to wit:
26,775 rentable (25,500 usable) square feet
of office space being the entire second floor of
Xxxxx 000, xx 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx
Xxxxxx, Xxxxxxx (hereinafter called the "Land"), as
the Premises are more particularly described in
Exhibit "A" attached hereto and made a part hereof
and as the Land is more particularly described in
Exhibit "B" attached hereto and made a part hereof.
The Building is to be completed according to Approved
Plans and Specifications (as hereinafter defined)
prepared by Xxxxxx Good X'Xxxxx and Xxxx which shall
be attached hereto as Exhibit "C", made a part hereof
and initialed by the parties. Agreements regarding
construction of the Premises are set forth in Exhibit
"D" attached hereto and made a part hereof.
No easement for light or air is included in the
Premises.
TERM 2. To have and to hold the same for a term
beginning on the 1st day of November, 1998 (referred
to in this Lease as the "Commencement Date"), and
ending on the 30th day of October, 2008 (herein
referred to as the "Expiration Date"), at midnight,
unless sooner terminated or extended as hereinafter
provided. All references to "terms of this Lease"
shall refer to the term of the Lease as it may be
renewed or extended in accordance with the terms
hereof.
2
RENTAL 3. Tenant agrees to pay Landlord, by payments to
Landlord at any place designated by Landlord promptly
on the 1st day of each month in advance, during the
term of this Lease, a monthly rental as set forth
hereinbelow:
Month Rental Rate Monthly Rental Obligation
----- ----------- -------------------------
1st through 9th $13.25 $23,187.50
10th through 12th $13.25 $29,564.06
13th through 24th $13.52 $30,155.34
25th through 36th $13.79 $30,758.45
37th through 48th $14.06 $31,373.62
49th through 60th $14.34 $32,001.62
61st through 72nd $14.63 $32,641.11
73rd through 84th $14.92 $33,293.94
85th through 96th $15.22 $33,959.81
97th through 108th $15.52 $34,639.01
109th through 120th $15.83 $35,331.79
The above is subject to verfification of the rentable
square footage of the premises after completion.
However, no change in the rent schedule will result
unless the actual square footage differs by more than
five percent (5%) from the lease document. In the
event Tenant occupies the entire building, the
rentable square footage will be fifty-one thousand
(51,000) square feet subject to the plans dated May
25, 1998.
As reflected in the foregoing, (i) the monthly rental
rate shall escalate by two percent (2%) on every
anniversary of the Commencement Date throughout the
initial term of the Lease, and (ii) Tenant will
occupy the entire second floor (approximately 26,775
rentable square feet) of the Building beginning on
the Commencement Date, but shall pay monthly rental
based only on 21,000 rentable square feet for the
first nine (9) months of the initial term of this
Lease. It is further agreed that the Tenant will not
pay any rent for the first two (2) weeks it occupies
the premises and then commence its ten (10) year
term.
Tenant shall also pay a late charge of five percent
(5%) of any rental payment not received by Landlord
within five (5) days from the date it is due,
provided that Tenant shall have three (3) grace
periods during the term of this Lease during which no
late charge will be due until Landlord gives Tenant
written notice of Landlord's non-receipt of any past
due payment. Tenant shall pay to the Landlord the
first and last month's rent in advance, on the
Commencement Date.
-2-
3
LIABILITY AND
CASUALTY INSURANCE 4. Tenant agrees to procure and maintain at
Tenant's expense, prior to entry upon the Premises, a
policy or policies of general liability insurance
against claims and damages in connection with the
Premises in amounts of not less than $1,000,000.00
with respect to damage to property or to injuries or
death suffered by any one person; and not less than
$1,000,000.00 with respect to injuries or death
suffered or damage to property in any one accident.
Landlord agrees to obtain and maintain throughout all
terms of this Lease casualty insurance on the
Building and all other improvements serving the
Premises at commercially reasonable rates and with
commercially reasonable coverage in the amount of the
full replacement cost thereof.
USE OF
PREMISES 5. Premises shall be used for office use and
general business purposes and no other. Premises
shall not be used for any illegal purposes; nor in
any manner to create any unreasonable nuisance or
trespass; nor in any manner to vitiate the insurance
or increase the rate of insurance on Premises;
provided that, if at any time Landlord believes that
activities of Tenant in the Premises will cause
increases in the cost of Landlord's insurance on the
Building or will cause Landlord's insurer to cancel
such insurance, Landlord shall provide Tenant with
thirty (30) days' prior notice of such belief and
Tenant's specific activity involved, and Tenant shall
be entitled to cease or otherwise cure any such
activity within such period and thereby avoid any
charge for any such increase; provided, however, that
Tenant shall not be required to comply with any
requirement which is not a valid legal requirement of
Landlord's insurer. Landlord agrees that Tenant's
proposed use of the Premises for the purposes
specifically permitted in this Lease shall not
increase Landlord's insurance rates or cause
Landlord's insurance to be canceled if Tenant's use
of the Premises for such permitted purpose is
conducted in accordance with all laws applicable
thereto.
TAX PRORATION 6. Tenant shall pay all ad valorem tax on any
personal property located in the Premises.
SERVICES 7. During all terms of this Lease Landlord
shall furnish to the Premises the services at
Landlord's sole cost: (i) hot and cold water to the
kitchen and bathroom areas of the Premises: (ii)
seasonable air-conditioning and heat from 7:00 A.M.
to 6:00 P.M. Mondays through Fridays and 8:00 A.M. to
1:00 P.M. on Saturdays, national holidays, Sundays
excepted, which air-conditioning and heating shall
maintain a uniform temperature throughout the
Premises within shall be the range of 70 to 75
degrees Fahrenheit and in no event be less
comfortable to
-3-
4
Tenant's employees than the heating and air
conditioning levels generally provided in comparable
"Class A" office buildings in the Satellite
Boulevard/Sugarloaf office sub-market area of
Atlanta, Georgia; (iii) "after hours" heating and
cooling at Tenant's expense for the direct cost
thereof; (iv) cleaning in accordance with the
specifications attached hereto as Exhibit "G" and
made a part hereof and generally care for the
Premises by janitors or cleaning personnel retained
by Landlord; (v) elevator service (with a passenger
elevator in operation on a twenty-four (24)-hour
basis); and (iv) electrical current for the operation
of Tenant's electrical equipment (excepting
electrical current used by any separate heating and
air-conditioning system desired by Tenant, which
current shall be separately metered and paid for by
Tenant), Landlord hereby representing to Tenant that
throughout all terms of this Lease there will be
sufficient feeder and riser capacity to the Premises
to provide electric service of at least 7.5 xxxxx per
square foot to all of the Premises excepting said
computer room. If due to the failure of Landlord or
any other party to provide such services for any
other reason the Premises become unusable for
Tenant's normal business operations for more than
five (5) consecutive business days, all rental
payable under this Lease shall xxxxx during the
period in which the Premises are uninhabitable.
ABANDONMENT OF
LEASED PREMISES 8. Tenant agrees not to abandon or vacate the
Premises during the period of this Lease, and agrees
to use said Premises for the purpose herein leased
until the expiration hereof; provided, however, that
Tenant shall not be deemed to have "abandoned" the
Premises unless Tenant is otherwise in default under
this Lease (after notice of default has been given by
Landlord and all applicable cure periods have passed
without cure of such default, all as provided in this
Lease) and permanently vacates all or a substantial
portion of the Premises..
REPAIRS BY LANDLORD 9. (a) Tenant shall accept the Premises in
their present condition and as suited for the uses
intended by Tenant after completion of the Landlord's
work shown or described in or reasonably inferable
from the Approved Plans and Specifications referred
to in Exhibit "C" of this Lease and Landlord's "Punch
List" work referred to in Exhibit "D" of this Lease.
Except as otherwise expressly provided in this Lease,
during all terms of this Lease Landlord shall make
all necessary repairs or improvements to the
Premises, including without limitation repairs to the
foundation, exterior walls or roof of the Building as
necessary for safety, tenantability and usability of
the Premises by Tenant as an administrative office;
repairs to underground utility and sewer pipes
outside the exterior walls of the Building, or under
or within the floor of the Premises; and all repairs
and replacements of all electrical, plumbing, heating
and air conditioning
-4-
5
systems and any and all other systems, parts,
components and fixtures within or serving the
Premises.
(b) Landlord shall be responsible for the maintenance
of those areas around the Building, including
driveways, walkways, parking areas, planted areas and
landscaped areas which shall be open for the joint
use by tenants of the Building or the public.
Landlord shall maintain such areas in a first-class
manner.
(c) Tenant shall report to Landlord any defect,
damage or condition to or in the Premises which
Landlord is obligated to maintain or repair under
this Lease with reasonable promptness following
Tenant's becoming aware thereof. In the event that
Landlord fails to perform any of the maintenance or
repairs required under subparagraphs (a) and (b)
above and such lack of maintenance or repair
interferes, in any material respect, with Tenant's
operation of its business or damages or threatens to
damage any property within the Premises, upon thirty
(30) days' prior written notice to Landlord, Tenant
shall have the right to perform the necessary
maintenance and repairs on behalf of Landlord and to
deduct any reasonable costs and expenses incurred by
Tenant in connection with such maintenance and
repairs from Tenant's next owing obligations for
monthly rent and any additional rental due Landlord
under this Lease; however, notwithstanding the
foregoing, in the event of an emergency, Tenant shall
use its best efforts to notify Landlord prior to
performing the maintenance or repairs pursuant to its
rights provided herein, and, in such event, Tenant
shall not be required to wait for the expiration of
the aforementioned thirty (30) day period.
The Building elevator(s) shall be in satisfactory
operating condition on the Commencement Date, and
Landlord shall maintain said elevator(s) in good
operating condition during the term of this Lease, or
any extension thereof.
REPAIRS BY TENANT 10. Upon occupancy of the Premises, Tenant shall
accept, subject to the Punch List items referred to
hereinafter in this Lease, the Premises in their then
present condition and as suited for the uses intended
by Tenant. Tenant shall, throughout the initial terms
of this Lease and all renewals thereof, at its
expense, maintain in good order and repair the
Premises, except those repairs expressly required to
be made by Landlord. Tenant agrees to return said
Premises to Landlord at the expiration, or prior
termination, of this Lease in as good condition and
repair as when first received, natural wear and tear,
damage by storm, fire, lightning, earthquake or other
casualty and condemnation alone excepted.
-5-
6
DESTRUCTION OF, 11. If Premises are totally destroyed by storm,
OR DAMAGE TO, fire, lightning, earthquake or other casualty, this
PREMISES Lease shall terminate as of the date of such
destruction, and rental shall be accounted for as
between Landlord and Tenant as of that date. In the
event the Premises cannot reasonably be restored
within ninety (90) days following the date of such
damage or destruction or if Landlord's mortgagee
elects to apply the insurance proceeds arising from
such casualty to the mortgage loan held thereby, then
Landlord shall notify Tenant in writing to such effect
within fifteen (15) days following the date of the
damage or destruction, and Tenant shall then have the
right to terminate this Lease by written notice to
Landlord, with all rent and other sums payable by
Tenant hereunder being accounted for as of the date of
such casualty. If this Lease is not terminated as
hereinabove provided, Landlord shall, within said
ninety (90)-day period, repair, restore, rebuild,
reconstruct or replace the damaged or destroyed
portion of the Premises to a condition as good or
better than that existing immediately prior to such
damage or destruction. Tenant's obligation to pay
monthly and additional rental under this Lease shall
xxxxx until Landlord has repaired, restored, rebuilt,
reconstructed or replaced the Premises, as required
herein, in proportion to the degree of use of the
Premises then lost to Tenant.
The foregoing notwithstanding, in the event
the Premises are destroyed to the extent that Tenant
is forced to cease substantially all of its operations
therein, Landlord shall have the right to notify
Tenant in writing, by no later than the fifteenth
(15th) business day following the date of such
casualty, as to whether Landlord in good faith
believes and intends to restore the Building within
ninety (90) days following the date of such casualty
to a condition allowing Tenant's occupancy and use of
the Premises for the purposes for which the Premises
were used by Tenant prior to such casualty. If at the
end of such ninety (90)-day period, such restoration
of the Premises is substantially completed (subject
only to punch list items which do not prevent Tenant's
use and occupancy of the entire Premises for Tenant's
intended purposes) and a certificate of occupancy has
been issued by the applicable governmental authority,
then Landlord shall promptly complete or repair such
punchlist items, and the Rental hereunder shall
resume. In the event Landlord does not so
substantially complete said restoration within such
ninety (90)-day period (or, if during the course of
such ninety (90)-day restoration, Landlord for any
reason becomes unable to reconfirm in writing to
Tenant, immediately following Tenant's written
request, that Landlord will be able to meet such
ninety (90) day completion date for such restoration),
then Tenant shall have the right to terminate this
Lease in the manner set forth hereinabove in this
Section 11.
INDEMNITY 12. Tenant agrees to indemnify and save harmless
the Landlord against all claims for damages to persons
or property arising from Tenant's
-6-
7
negligence or willful wrongdoing in connection with
Tenant's use or occupancy of the Premises, and all
expenses incurred by Landlord because thereof,
including attorneys' fees and court costs. Landlord
agrees to indemnify and save harmless Tenant against
all claims for damages to persons or property arising
from Landlord's negligence or willful wrongdoing in
connection with Landlord's leasing of the Premises to
Tenant, and all expenses incurred by Tenant because
thereof, including attorneys' fees and court costs.
GOVERNMENTAL ORDERS 13. Landlord agrees, at Landlord's own expense,
to promptly comply with all requirements of any
legally constituted public authority made necessary by
reason of Tenant's use of said Premises. Landlord
agrees to promptly comply with any such requirements
if not made necessary by reason of Tenant's use of the
Premises. It is mutually agreed, however, between
Landlord and Tenant, that if in order to comply with
such requirements, the cost of Landlord or Tenant, as
the case may be, shall exceed a sum equal to one
year's rent, then Landlord or Tenant who is obligated
to comply with such requirements is privileged to
terminate this Lease by giving written notice of
termination to the other party, by registered mail,
which termination shall become effective sixty (60)
days after receipt of such notice, and which notice
shall eliminate necessity of compliance with such
requirement by party giving such notice unless party
receiving such notice of termination shall, before
termination becomes effective, pay to party giving
notice all cost of compliance in excess of one year's
rent, or secure payment of said sum in manner
satisfactory to party giving notice.
CONDEMNATION 14. If the whole of the Premises be condemned by
any legally constituted authority for any public use
of purpose, then in either of said events the term
hereby granted shall cease from the time when
possession thereof is taken by public authorities, and
rental shall be accounted for as between Landlord and
Tenant as of that date. Such termination, however,
shall be without prejudice to the rights of either
Landlord or Tenant to recover compensation and damage
caused by condemnation from the condemnor. It is
further understood and agreed that neither the Tenant
nor Landlord shall have any rights in any award made
to the other by any condemnation authority. In the
event the Premises (including without limitation
access thereto or parking serving the Premises) are
damaged by condemnation to a lesser extent than set
forth hereinabove but to an extent that the degree of
Tenant's use of the Premises is reduced by five
percent (5%) or more, Tenant shall have the right to
terminate this Lease by written notice to Landlord. If
Tenant elects not to so terminate this Lease or if
such damage to the Premises is less than five percent
(5%), Landlord shall promptly repair and restore the
Premises at Landlord's expense to at least as good a
condition as existed prior to such damage, and the
monthly rental
-7-
8
hereunder shall be equitably reduced based on both the
square footage and the degree of use lost to Tenant by
such reduction in size of the Premises.
The foregoing notwithstanding, in the event
the parking area of the Premises is substantially
reduced by such a condemnation, then nonetheless
Tenant shall continue to have the right, superior to
that of any other tenants of the Building or of
Landlord's adjacent property, to use 127 (or more, if
the Premises has been expanded after the Commencement
Date) spaces within the parking lot initially
constructed to serve the Building, and Landlord agrees
to designate and assign to Tenant such portion of the
rear area of the parking lot adjacent to the Building
as will allow Tenant's exclusive use of such 127
spaces; otherwise, Tenant shall have the right to
terminate this Lease as set forth hereinabove. Rental
under this Lease shall be equitably reduced in a
manner equivalent to compensate Tenant for such loss
of use of the Premises by reduction in parking
therefor.
ASSIGNMENT AND
SUBLETTING 15. Tenant may, following written notice to
Landlord to such effect, sublease portions of the
Premises to others provided such sub-lessee's
operation is a part of the general operation of Tenant
and under the supervision and control of Tenant and
provided such operation is within the purposes for
which said F Premises shall be used. Except as
provided in preceding sentence, Tenant shall not,
without the prior written consent of Landlord endorsed
hereon, assign this Lease or any interest hereunder,
or sublet Premises or any part thereof, or permit the
use of Premises by any party other than Tenant.
Consent to any assignment or sublease shall not
destroy this provision, and all later assignments or
subleases shall be made likewise only on the prior
written consent of Landlord. Assignee of Tenant, at
option of Landlord, shall become directly liable to
Landlord for all obligations of Tenant hereunder, but
no sublease or assignment by Tenant shall relieve
Tenant of any liability hereunder.
In the event Tenant desires to assign this Lease or
sublet all or part of the Premises to a third party,
Landlord agrees not to unreasonably withhold or delay
Landlord's consent to a written request delivered to
Landlord by Tenant for such assignment or subleasing;
in the event Landlord does not respond to such written
request within ten (10) business days after Landlord's
received the same, then such request shall deem to be
approved, and Tenant shall be entitled to proceed with
such assignment or a subleasing and shall furnish
Landlord with notice at the time such assignment or a
sublease has been entered into.
-8-
9
REMOVAL OF
FIXTURES 16. Tenant shall not be required to remove any
fixtures or improvements to the Premises at or at any
time prior to the end of the final term of this
Lease. Tenant may, at Tenant's option and at any time
prior to the expiration of this Lease, or any
extension thereof, remove all fixtures and equipment
which Tenant has placed in Premises, provided Tenant
repairs all damage to Premises caused by such
removal.
CANCELLATION OF
LEAVE BY LANDLORD 17. It is mutually agreed that in the event the
Tenant shall default in the payment of rent herein
reserved, when due, by failing to make any payment
required under this Lease within ten (10) business
days after Tenant's receipt of written notice from
Landlord to Tenant, nor will an event of default have
occurred if Tenant shall be in default in performing
any of the terms or provisions of this Lease other
than the foregoing provision requiring the payment of
rent if Tenant in good faith commences to cure any
such non-monetary default within thirty (30) days
after Tenant's receipt of written notice from
Landlord and thereafter diligently pursues such cure
to completion, or if Tenant is adjudicated
bankruptcy; or if a permanent receiver is appointed
for Tenant's property and such receiver is not
removed within sixty days after written notice from
Landlord to Tenant to obtain such removal; or if,
whether voluntarily or involuntarily, Tenant takes
advantage of any debtor relief proceedings under any
present or future law, whereby the rent or any part
thereof is, or is proposed to be, reduced or payment
thereof deferred, or if Tenant makes an assignment
for benefit of creditors, or if Tenant's effects
should be levied upon or attached under process
against Tenant, not satisfied or dissolved within
thirty (30) days after written notice from Landlord
to Tenant to obtain satisfaction thereof; then, and
in any of said events, Landlord at Landlord's option
may at once, or within six (6) months thereafter (but
only during continuance of such default or
condition), terminate this Lease by written notice to
Tenant; whereupon this Lease shall end. After an
authorized assignment or subletting of the entire
Premises covered by this Lease, the occurring of any
of the foregoing defaults or events shall affect this
Lease only if caused by, or happening to, the
assignee or sublessee. Any notice provided in this
paragraph may be given by Landlord or Landlord's
attorney. Upon such termination by Landlord, Tenant
will at once surrender possession of the Premises to
Landlord; and Landlord may forthwith re-enter the
Premises and repossess himself thereof, and remove
all persons and effects therefrom, using such force
as may be necessary without being guilty of trespass,
forcible entry or detainer or other tort.
-9-
10
RELETTING BY
LANDLORD 18. Landlord, as Tenant's agent, without
terminating this Lease, upon Tenant's breaching this
contract, may at Landlord's option enter upon and rent
Premises at the best price obtainable by reasonable
effort, without advertisement and by private
negotiations and for any term Landlord deems proper.
Tenant shall be liable to Landlord for the deficiency,
if any, between Tenant's rent hereunder and the price
obtained by Landlord on reletting.
EXTERIOR SIGNS 19. During all terms of the Lease, Tenant shall
be entitled to install and maintain roof or exterior
wall signage displaying Tenant's name or trade name,
logo and related information so long as such signs are
maintained in compliance with rules and regulations
governing such signs, and the Tenant shall be
responsible to Landlord for any damage caused by
installation, use, or maintenance of said signs, and
Tenant agrees upon removal of said signs to repair all
damage incident to such removal. So long as Tenant is
leasing 25,000 or more rentable square feet within the
Building, Landlord agrees that Tenant shall have the
exclusive right to signage on the Building and agrees
not to allow or grant to any other tenant of the
Building or any other party the right to place signs
on the roof or exterior walls of the Building.
ENTRY FOR
CARDING, ETC. 20. Landlord may card Premises "For Rent" or
"For Sale" thirty (30) days before the termination of
this Lease. Landlord may enter the Premises at
reasonable hours to exhibit same to prospective
purchasers or tenants and to make repairs required of
Landlord under the terms hereof, or to make repairs to
Landlord's adjoining property, if any. Landlord may
further enter the Premises upon reasonable notice for
the purpose of inspecting the Premises at any time
during normal business hours, or without notice if
necessary to affect any repairs or maintenance
required by Landlord.
EFFECT OF TERMIN-
ATION OF LEASE 21. No termination of this Lease prior to the
normal ending thereof, by lapse of time or otherwise,
shall affect Landlord's right to collect rent for the
period prior to termination thereof.
MORTGAGEE'S
RIGHTS 22. Tenant's rights shall be subject to any bona
fide mortgage or deed to secure debt which is now, or
may hereafter be, placed upon the Premises by
Landlord.
-10-
11
NO ESTATE
IN LAND 23. This contract shall create the relationship
of Landlord and Tenant between the parties hereto; no
estate shall pass out of Landlord. Tenant has only a
usufruct, not subject to levy and sale, and not
assignable by Tenant except by Landlord's consent.
HOLDING OVER 24. If Tenant remains in possession of Premises
after expiration of the term hereof, with Landlord's
acquiescence and without any express agreement of
parties, Tenant shall be a tenant at will at rental
rate in effect at end of Lease; and there shall be no
renewal of this Lease by operation of law.
ATTORNEYS' FEES
AND HOMESTEAD 25. If any rent owing under this Lease is
collected by or through an attorney at law, Tenant
agrees to pay fifteen percent (15%) thereof as
attorneys' fees. Tenant waives all homestead rights
and exemptions which Tenant may have under any law as
against any obligation owing under this Lease. Tenant
hereby assigns to Landlord Tenant's homestead and
exemption.
RIGHTS
CUMULATIVE 26. All rights, powers and privileges conferred
hereunder upon parties hereto shall be cumulative but
not restrictive to those given by law.
SERVICE OF NOTICE 27. Notwithstanding any other provision of this
Lease, any notice or document required to be
delivered under the terms of this Lease shall be
deemed delivered when received by the addressee
either (i) after deposit in the United States Mail,
postage prepaid, certified mail, return receipt
requested, or (ii) by personal delivery by hand or
(iii) by local or air express courier. Either
Landlord or Tenant may by notice to the other specify
a different address for payments or for delivery of
notices. A copy of all notices under this Lease shall
also be sent to Tenant's last known address, if
different from said Premises.
WAIVER OF RIGHTS 28. No failure of Landlord to exercise any
power given Landlord hereunder, or to insist upon
strict compliance by Tenant with Tenant's obligation
hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a
waiver of Landlord's right to demand exact compliance
with the terms hereof.
TIME OF ESSENCE 29. Time is of the essence of this agreement.
DEFINITIONS 30. "Landlord" as used in this Lease shall
include Landlord, Landlord's heirs, representatives,
assigns and successors in title to Premises. "Tenant"
shall include Tenant, its successors, and if this
Lease shall be validly assigned or sublet, shall
include also Tenant's assignee or
-11-
12
sublessees, as to Premises covered by such assignment
or sublease. "Landlord" and "Tenant" shall include
male and female, singular and plural, corporation,
partnership or individual, as may be the particular
parties.
BROKERAGE 31. Landlord and Tenant acknowledged that
Insignia/ESG, a real estate broker licensed under the
laws of the State of Georgia (hereinafter referred to
as "Broker") is the procuring cause of the leasing
transaction set forth in this Lease and has
represented and acted as broker for Tenant and not for
Landlord in this leasing transaction. Landlord shall
nonetheless pay, pursuant to the terms of a separate
commission agreement between Landlord and Broker, a
leasing commission of Broker as set forth in such
separate agreement. The provisions of this Section 31
shall survive the expiration or earlier termination of
this Lease and any sale or transfer of the Building or
Land by Landlord.
SPECIAL STIPULATIONS 32. Insofar as the following stipulations
conflict with any of the foregoing provisions, the
Special Stipulations are continued on Exhibit "E"
attached shall control.
This Lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties, not embodied herein, shall be of any force or effect.
IN WITNESS WHEREOF, the parties herein have hereunder set their hands
and seals, in duplicate, the day and year first above written.
As to Landlord: LANDLORD:
Signed, sealed and delivered in the
presence of:
/s/Xxxxxxx X. Xxxxxxx (SEAL)
--------------------------------
XXXXXXX X. XXXXXXX
------------------------------------
------------------------------------
Notary Public (affix stamp and seal)
-12-
13
As to Tenant: TENANT:
Signed, sealed and delivered in the HEADHUNTERS, LLC
presence of:
By: /s/ Xxxxxxx Xxxxxx
------------------------------------ ---------------------------------
Title: CFO
------------------------------------ -----------------------------
Notary Public (affix stamp and seal) By:
---------------------------------
Title:
---------------------------
(affix corporate seal)
-13-
14
EXHIBIT "A"
THE PREMISES
Refer to Floor Plan of Second Floor for the Premises (such Plan being hereby
incorporated into this Lease) prepared by Xxxxxx Xxxxxxx, Architect,
dated May 25, 1998
A-1
15
EXHIBIT "B"
THE LAND
B-1
16
EXHIBIT "C"
APPROVED PLANS AND SPECIFICATIONS
FOR THE BUILDING AND THE PREMISES
Refer to Plans and Specifications (such Plans and Specifications being hereby
incorporated into this Lease) for the Premises and for the Building at 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx, prepared by Xxxxxx Xxxxxxx,
Architect, dated May 25, 1998
C-1
17
EXHIBIT "D"
CONSTRUCTION
1. TERMS RELATING TO CONSTRUCTION OF BUILDING AND PREMISES. The
following terms, defined hereinbelow, shall be used in connection with
Landlord's construction of the Building:
(i) "Approved Plans and Specifications" - The plans
and specifications for the Building and the Premises, which plans and
specifications are attached hereto as Exhibit "C" and initialed in writing by
Landlord and Tenant.
(ii) "Architect's Certificate" - The certificate
Landlord shall deliver to Tenant prepared by Xxxxxx Good X'Xxxxx and Xxxx
immediately prior to the Commencement Date, certifying: (a) the Rentable Area of
the Premises; (b) the Rentable Area of the Building; and (c) the Proration
Percentage, as hereinafter defined in this Lease. If the Architect's Certificate
discloses any variance from the area calculations set forth in this Lease, this
Lease shall be amended by setting forth in amendment hereto the correct area
calculations from the Architect's Certificate.
(iii) "Rentable Area" or "the rentable square
footage" of the Premises shall not be less than either 25,500 usable square feet
or the square footage calculated per the Approved Plans and Specifications.
(iv) "Commencement Date" - Landlord shall notify
Tenant in writing at least thirty (30) days in advance of the date that Landlord
anticipates that the Premises will be Ready for Occupancy. The term of this
Lease shall commence on the date the Premises are Ready for Occupancy, as
defined hereinbelow, which date as presently estimated by Landlord shall be
November 1, l998. If the Premises are not Ready for Occupancy on or before the
Deadline Completion Date of November 15, 1998, then Tenant shall be entitled to
two (2) days of abatement of Base Rental and additional rent for each day after
the Deadline Completion Date until the Premises are Ready for Occupancy.
(v) "Ready for Occupancy" - The last of the
following to occur: (a) the Building and the Premises are completed in a good
and workmanlike manner; (b) all of the improvements to the Premises have been
completed substantially in accordance with the Approved Plans and
Specifications; and (c) Landlord has delivered written notice to Tenant stating
that all necessary certificates of occupancy for the Building and the Premises
have been issued and that the Premises are fully ready for Tenant to move in and
commence the full operation of Tenant's business. Landlord agrees to provide
Tenant with a copy of all certificates of occupancy for the Building and the
Premises upon Landlord's receipt of same.
D-1
18
(vi) "Required Date for Beginning of Construction"
Landlord agrees, as a material inducement to Tenant to enter into this Lease, to
obtain Landlord's development permit for the Building and all related
improvements to the Land no later than June 1, 1998, and the "Required Date for
Beginning of Construction" shall be the earlier of the fifth (5th) calendar day
after Landlord has obtained the said development permit or June 5, 1998, as such
date may be extended for each day that Tenant fails to approve the Approved
Plans and Specifications. If such Construction has not commenced by such date,
then as its sole remedy Tenant shall have the right to terminate this Lease by
written notice to Landlord given no later than fifteen (l5) days following the
Required Date for Beginning of Construction.
(vii) "Deadline Completion Date" - November 15, 1998.
The Deadline Completion Date shall be extended only for delays caused by Tenant,
including change orders requested by Tenant, of which delays Tenant was notified
by Landlord in writing prior to Landlord's approval of the change order, or
Tenant's interference with construction or Tenant's delays in providing
approvals required of Tenant under this Lease.
2. CONSTRUCTION.
(a) Covenant to Construct. Landlord hereby covenants to Tenant
that Landlord shall construct the Building and the Premises as shown in the
Approved Plans and Specifications (as defined hereinbelow) at Landlord's sole
cost and expense in a good and workmanlike manner and in compliance with all
applicable governmental codes and regulations. Landlord shall commence
construction on or before the Required Date for Beginning of Construction (as
defined hereinbelow) and shall prosecute such construction diligently and
continuously so that the Premises shall be Ready for Occupancy (as defined
hereinbelow) on or before the Deadline Completion Date (as defined hereinbelow).
(b) Approval of Plans and Specifications. Landlord and Tenant
each adopt and approve the Approved Plans and Specifications attached hereto as
Exhibits "C", "H" and "I". Landlord shall not make any changes to the Approved
Plans and Specifications which would or might have an adverse affect on the size
or quality of the Building or the Premises or of Tenant's use or enjoyment
thereof without the prior written consent of Tenant. If a change is desired by
Landlord requiring Tenant's approval, Landlord shall submit to Tenant a written
request for approval, which request shall contain the appropriate information
describing the change requested. If Tenant disapproves the requested change,
Tenant shall provide such disapproval in writing within ten (10) calendar days
following Landlord's said request for approval and shall state the reasons for
its disapproval. If Landlord makes unauthorized changes to the Approved Plans
and Specifications which adversely affect the Premises and, if Landlord does not
or is for any reason unable to restore the Premises to the condition shown on
the Approved Plans and Specifications within ten (10) days after receipt of
Tenant's said notice, then in addition to any other remedies Tenant may have
under the Lease or at law
D-2
19
or in equity, Tenant shall also have the right, by written notice to Landlord,
to terminate this Lease.
(c) Construction Status. At the request of Tenant, Landlord
agrees to make representatives of Landlord available to meet with Tenant at
reasonable intervals until the Building and the Premises are completed to review
the status of construction of the Building and the remises. Landlord shall
advise Tenant in writing of the Tenant's estimated Commencement Date of the term
of this Lease no later than the sixtieth (60th) calendar day prior to the date
which Landlord reasonably estimates will be the Commencement Date.
(d) Utilities. Landlord hereby covenants and represents that,
on or prior to the Commencement Date, the Premises will be served by all
utilities necessary for the intended use of the Premises by Tenant, including
but not limited to gas, electric, telephone, water and sewer.
(e) Tenant's "Punch List". At a time and date mutually
agreeable to both Landlord and Tenant within thirty (30) days following
occupancy of the Premises by Tenant of the Premises to Tenant, Tenant shall
inspect the Premises and notify Landlord of any "punch list" items requiring
Landlord's completion or repair; after receipt of such punch list, Landlord
shall have thirty (30) days in which to complete all construction and make all
such repairs provided, however, that Landlord shall have such reasonably longer
period than thirty (30) days as may be needed to accomplish an item of such
completion or repair which reasonably requires a period of repair longer than
thirty (30) days if Landlord promptly commences and diligently and continuously
pursues to completion such repair or remedy. Upon Landlord's completion of such
repairs to the reasonable satisfaction of Tenant, Tenant agrees to execute and
deliver to Landlord a Certificate Regarding Tenant's Acceptance of Premises as
set forth in Exhibit "F" attached hereto and made a part hereof.
After Landlord's initial completion or repair of such initial punch
list items, at a time and date mutually agreeable to both Landlord and Tenant
within thirteen (13) months following delivery of possession of the Premises to
Tenant, Tenant shall again have the right to notify Landlord of any
then-existing items requiring Landlord's completion or repair; after receipt of
such second punch list, Landlord shall have thirty (30) days in which to
complete all construction and make all such repairs; provided, however, that
Landlord shall have such reasonably longer period than thirty (30) days as may
be needed to accomplish an item of such completion or repair which reasonably
requires a period of repair longer than thirty (30) days if Landlord promptly
commences and diligently and continuously pursues to completion such repair or
remedy.
Notwithstanding the foregoing, Tenant's acceptance of the air
conditioning system of the Premises shall not be requested by Landlord until
Tenant has made seasonal use of such system for at least thirty (30) consecutive
days.
D-3
20
(f) Tenant's Change Orders. In the event during the
construction of the Premises Tenant advises Landlord in writing of changes which
Tenant desires to be made to the Premises (which were not included in a
reasonably inferable from the original plans and specifications approved by
Tenant), and if the cost of such change creates an increase in cost of
construction of the Premises to Landlord, then Tenant shall have the option of
(a) paying Landlord the amount documented by Landlord to be its reasonable cost
of making such change or (b) increasing the rent over the initial term of this
Lease to reflect such additional cost payable by Landlord. The parties shall set
forth their agreement in such respect in a "Change Order Agreement" to be
executed by both parties prior to Landlord's commencement of the change order
work requested by Tenant.
D-4
21
EXHIBIT "E"
SPECIAL STIPULATIONS
1. EXTENSION OR RENEWAL OPTIONS - PREVAILING RATE: If at the end of the
original ten(10)-year term of this Lease, Tenant is not in default which is
uncured after any applicable notice and cure period in any of the terms,
conditions or covenants of the Lease, Tenant is hereby granted an option to
extend or renew the term of this Lease for an additional term of five (5) years
upon the same terms and conditions contained in this Lease, with the exception
that the rental for the extension or renewal term shall be based upon the
then-prevailing rental rates within the Building for spaces of equivalent
quality, size, utility and location, with the length of the Lease term and
credit standing of the tenant to be taken into account.
If Tenant desires to so extend or renew the term of this Lease, Tenant
shall notify Landlord of Tenant's intention to renew no later than six (6)
months prior to the last day of the original term of this Lease. Landlord shall
within the following fifteen (15) days notify Tenant in writing of the proposed
rental rate for the extension or renewal term, and Tenant shall within the
next-following fifteen (15) days notify Landlord in writing of Tenant's
acceptance or rejection of the proposed rental rate. If Tenant rejects
Landlord's proposed rental rate, then Tenant shall so promptly notify Landlord,
and both parties shall work in good faith promptly to reach an agreement as to
the renewal rate. If an agreement has not been reached within forty-five (45)
days of Landlord's original notification to Tenant of Landlord's proposed rental
rate, Tenant and Landlord shall each appoint an appraiser who shall be a member
of the American Institute of Real Estate Appraisers to represent Tenant and
Landlord respectively. These two appraisers shall each appoint a third appraiser
who shall also be a member of the American Institute of Real Estate Appraisers,
and such three appraisers shall, using data available for comparable facilities
as aforesaid, determine a rental rate which shall be binding upon Tenant and
Landlord for such renewal term.
2. OPTION TO EXPAND. Tenant is entering into this Lease in reliance on the
benefit of a possible expansion of the Premises at such time as any space in the
Building is not under lease to any party other than Tenant. Accordingly, as a
condition of Tenant's entering into this Lease, Landlord hereby agrees with
Tenant that Landlord will not grant to any third party tenant or other occupant
of the Building or other party whatsoever any refusal, expansion, extension,
renewal, or other options or rights unless such rights are made specifically
secondary and subordinate to Tenant's option to expand set forth hereinbelow.
Landlord hereby grants to Tenant the continuing first and prior right
to lease any leasable portion of the first floor of the Building not included
within the Premises which becomes vacant during any term of this Lease, and at
such earlier time as (i) Tenant notifies Landlord in writing that Tenant desires
to lease such expansion area or (ii) Landlord notifies Tenant in writing that
Landlord has a prospective tenant desiring to
E-1
22
lease such expansion area, in which latter event Tenant shall accept or reject
such space within ten (10) business days following receipt of such notice from
Landlord; failure of Tenant to so accept such space shall be deemed a rejection.
In the event Tenant desires to lease such expansion area, if such space has not
then been previously leased to a third party, such expansion area shall be added
to the Premises on terms and conditions, including without limitation any
construction allowance, which new or prospective tenants of the Building are
then being offered by Landlord.
In the event at any time Tenant is offered but rejects any such
expansion space, Tenant's aforesaid option to expand shall remain in full force
and effect over all leasable space in the Building not under lease to Tenant and
shall revive as to space offered to a third party at such time as the space
again becomes vacant and available for lease, to third parties.
3. RIGHT OF FIRST REFUSAL: Tenant is entering into this Lease in reliance
on the benefit of a possible expansion of the Premises at such time as any space
in the Building is not under lease to any party other than Tenant. Accordingly,
as a condition of Tenant's entering into this Lease, Landlord hereby agrees with
Tenant that Landlord will not grant to any third party tenant or other occupant
of the Building or other party whatsoever any refusal, expansion, extension,
renewal, or other options or rights unless such rights are made specifically
secondary and subordinate to Tenant's right of first refusal set forth
hereinbelow. In connection with the foregoing agreement with Tenant, Landlord
hereby agrees with Tenant that Landlord will not lease any space on the first
floor of the Building for a term longer than five (5) years nor grant any
extension, renewal or expansion rights in connection with any lease unless such
extension, renewal or expansion right is made specifically subordinate to
Tenant's right and option to lease such extension, renewal or expansion space as
set forth in this Lease.
Tenant shall have the following continuing right of first refusal on
all space within the Building which is at any time not under lease to any party
other than Tenant: prior to leasing any space in the Building to a third party
(which term "third party" shall include any previous or then-current occupancy
of such space whose Lease terms do not contain a right or option of extension or
renewal), (i) if Tenant initiates with Landlord Tenant's leasing of any
available expansion space in the Building, such leasing shall be on all the
terms and conditions of this Lease, including without limitation the Rental
schedule then applicable hereunder, plus future escalations as set forth in
Section 3 of this Lease; provided, however, that (ii) if Landlord receives from
a good faith, bona fide third party prospective tenant a written offer to lease
such space, setting forth all terms and conditions of such offer, Landlord shall
promptly forward Tenant a copy thereof, and Tenant shall have ten (10) business
days after receipt of such offer from Landlord in which to lease the space
covered by such offer on the terms of such offer or to reject the same;
provided, however, that, if the rental in such offer reflects consideration for
Landlord's providing non-standard improvements (whether in quantity or quality),
such offered rental shall be equitably adjusted and discounted to reflect the
extent to which Tenant will not require Landlord to make such non-standard
improvements to such space.
E-2
23
In the event Tenant elects to lease the space offered, Tenant shall so
notify Landlord within five (5) business days after receiving written notice of
Landlord's desire to lease the space to a third party. In the event such
acceptance notice from Tenant is not received, Landlord shall be free to lease
such space to a third party upon agreed upon terms and conditions; provided,
however, that, if for any reason Landlord does not lease such refusal space to
such third party on the same terms and conditions offered to Tenant within six
(6) months following Tenant's receipt of such offer, or if the refusal space is
so leased but the term of such Lease terminates prior to the expiration of this
Lease, Tenant's right of first refusal shall again be in force and effect over
such refusal space.
4. PARKING. Landlord shall provide to Tenant four and six/tenths (4.6)
parking spaces for each 1,000 rentable square feet in the Premises for use by
Tenant, its employees, agents, customers, guests and invitees, on the
Commencement Date and thereafter throughout all terms of this Lease, such number
of spaces to increase in the event of expansion of the Premises. Landlord shall
use reasonable efforts to obtain Gwinnett County approval to locate all
handicapped parking spaces next to the entrance doors of the Building. Further,
at any time that Tenant exercises any right of first refusal or option to expand
the Premises granted in this Lease and accepts additional space in the Building,
Landlord shall provide Tenant with such additional parking spaces as are
available in an effort to provide a minimum ratio of four and six/tenths (4.6)
parking spaces for each 1,000 rentable square feet included in such expansion.
5. REASONABLENESS OF LANDLORD. Landlord hereby agrees with Tenant that,
at any time during any term of this Lease that Landlord has the right or
privilege of giving approval, consent, making a judgment, exercising an option
or election, making an expenditure for which reimbursement may be claimed from
Tenant, or otherwise making a decision or taking action or inaction affecting
the rights of Tenant under this Lease, no such approval or consent shall be
unreasonably withheld or delayed and all such judgments, elections and
decisions by Landlord shall be made both reasonably and with reasonable
promptness.
6. ACCESS. Tenant shall have access to, and the right to use all systems
of, the Building twenty-four hours per day, fifty-two weeks per year during all
terms of this Lease.
7. SALE BY LANDLORD. In the event of any sale, conveyance, transfer or
assignment by Landlord of its interest in and to the Premises, all obligations
under this Lease of the party selling, conveying, transferring, assigning or
otherwise disposing shall cease and terminate and Tenant releases said party
from same and Tenant shall thereafter look only and solely to the party to whom
or which the Premises were sold, conveyed, transferred, assigned or otherwise
disposed of for performance of all of Landlord's duties and obligation under
this Lease; provided, however, that Landlord shall not be released from
responsibility for any rental prepaid by Tenant unless and until the transferee
thereof has
E-3
24
acknowledged to Tenant in writing its receipt thereof and its agreement to abide
by the terms of this Lease.
8. COVENANT OF QUIET ENJOYMENT. So long as Tenant observes and performs the
covenants and agreements contained herein to be observed and performed by
Tenant, Landlord covenants and agrees that Tenant shall at all times during the
term of this Lease peacefully and quietly have and enjoy possession of the
Premises, but always subject to the terms hereof.
9. SUBORDINATION AND ATTORNMENT. Landlord shall within thirty (30) calendar days
following full execution and delivery of this Lease obtain from its present
lenders a nondisturbance agreement in form and substance reasonably acceptable
to Tenant, providing that, in the event the deed to secure debt or mortgage
instrument is foreclosed, Tenant's possession of the Premises shall not be
disturbed so long as no event of default of Tenant shall have occurred and is
continuing and so long as Tenant continues to comply with the terms of this
Lease (a "Nondisturbance Agreement"). As to any future deed to secure debt or
mortgage instrument placed against the Premises or the Building after the date
of this Lease, Landlord shall likewise obtain from such lender a Nondisturbance
Agreement in form and substance reasonably acceptable to Tenant.
10. HAZARDOUS SUBSTANCES. Tenant covenants and agrees that it shall not cause or
permit any Hazardous Substances (as hereinafter defined) to be generated, used,
treated, stored, released or disposed of in, on, at, or under the Premises, the
Building or the Land without Landlord's prior written consent. Tenant further
covenants and agrees to indemnify Landlord for any loss, cost, damage, liability
or expense (including, without limitation, attorneys' fees), as well as
environmental impairment damages, that Landlord might ever incur because of
Tenant's failure to comply with the provisions of the immediately preceding
sentence, this indemnification to survive the expiration or other termination of
this Lease. For the purposes of this Stipulation, Hazardous Substances shall
mean and refer to (i) all those substances, elements, materials, compounds or
wastes defined or classified as hazardous or restricted under (A) the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended from time to time, the regulations promulgated thereunder and
analogous state statutes and regulations, (B) the Resource Conservation and
Recovery Act of 1976, as amended from time to time, the regulations promulgated
thereunder and analogous state statutes and regulations, (C) the Toxic
Substances Control Act, as amended from time to time, the regulations
promulgated thereunder and analogous state statutes and regulations; and (ii)
petroleum products, including, without limitation, waste oils; and (iii)
"asbestos," as defined in 29 C.F.R. Sec. 1910.1001 et seq. (or analogous
regulations promulgated under the Occupational Safety and Health Act of 1970, as
amended from time to time, and the regulations promulgated thereunder); and (iv)
"PCBs," as defined in 40 C.F.R. Sec. 761 et seq. and "TCDD," as defined in 40
C.F.R. Sec. 775 et seq. (or in either case analogous regulations promulgated
under the Toxic Substances Control Act, as amended from time to time); and (v)
any other substance, element, material or compound defined or restricted as a
hazardous, toxic, radioactive or dangerous substance, material or waste by the
E-4
25
Environmental Protection Agency or by any other ordinance, statute, law, code,
or regulation of any federal, state or local governmental entity or any agency,
department or other subdivision thereof, whether now or later enacted, issued,
or promulgated.
The foregoing notwithstanding, Tenant's use of normal cleaning solvent
and computer hardware maintenance products shall not be a violation of the
foregoing hazardous substances provision so long as the same are used
substantially in accordance with manufacturers' instructions and are disposed of
in a lawful manner. Landlord and Tenant each agree not to allow Hazardous
Substances to be brought into or be a part of the Premises or the Building.
E-5
26
EXHIBIT "F"
CERTIFICATE REGARDING TENANT'S ACCEPTANCE OF PREMISES
Tenant: HEADHUNTERS, L.L.C., a Georgia limited liability company
Landlord: XXXXXXX X. XXXXXXX
Date Lease Signed: , 1998
Term of Lease: Ten Years
Address of Leased Premises: Suite _______ containing approximately __________
square feet, located at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx
Commencement Date: _________________________, 1998
Termination Date:___________________________, 2008
Rentable Area in Premises:________________________rentable square feet
Rentable Area of the Building: _____________________ rentable square feet
The Proration Percentage: ____%
The above described Premises are accepted by Tenant as suitable for the purpose
for which they were leased from Landlord.
TENANT:
HEADHUNTERS, L.L.C., a Georgia limited liability company
By:
---------------------------------
Title:
---------------------------
LANDLORD:
By:
----------------------------------(SEAL)
Xxxxxxx X. Xxxxxxx
F-1
27
EXHIBIT "G"
CLEANING SPECIFICATIONS
JANITORIAL SERVICES PER LEASE are to be provided on a daily, weekly,
semi-monthly and quarterly basis as provided below:
I. Weekday Daily Services:
A. Cleared desks, cabinets and book shelves dusted as required.
B. Waste containers emptied, liners replaced as necessary.
C. Vinyl tile areas swept and stains removed.
D. Finger prints removed from interior glass windows and partitions.
E. Carpets vacuumed as required.
F. Hallways, stairwells and common areas serving Premises swept,
vacuumed and dusted.
G. Floors in bathrooms and lobbies damp mopped spray buffed.
H. All bathroom fixtures cleaned an sanitized.
I. Bathroom stall partitions and walls cleaned.
J. Drinking fountains cleaned.
X. Xxx trays (if any) emptied and cleaned.
II. Weekly Services:
A. All carpeted areas vacuumed thoroughly.
B. Clean and polish all floors.
C. Dust all woodwork..
III. Semi-Monthly Services:
A. Vacuum upholstered furniture.
IV. Quarterly:
A. High dusting of all ledges and lights.
B. Floors stripped and waxed as needed.
C. Wash all glass partitions.
D. Spot clean carpets as needed.
E. Strip and refinish quarry tile floors in lobbies.
V. Semi-annual: exterior and interior glass cleaning.
G-1
28
EXHIBIT "H"
ELECTRICAL SPECIFICATIONS
Refer to Plans and Specifications (such Plans and Specifications being hereby
incorporated into this Lease) for the Premises, prepared by Xxxxxx Xxxxxxx,
Architect, dated __________________, 1998
H-1
29
EXHIBIT "I"
HEATING, VENTILATING AND AIR CONDITIONING SPECIFICATIONS
Refer to Plans and Specifications (such Plans and Specifications being hereby
incorporated into this Lease) for the Premises, prepared by Xxxxxx Xxxxxxx,
Architect, dated __________________, 1998
30
FIRST AMENDMENT TO LEASE CONTRACT
BETWEEN XXXXXXX XXXXXXX, AS LANDLORD,
AND HEADHUNTERS, LLC, AS TENANT
THIS FIRST AMENDMENT TO LEASE CONTRACT, made and entered into this as
of the 4th day of June, 1998 by and between XXXXXXX X. XXXXXXX, hereinafter
referred to as "Landlord", and HEADHUNTERS, LLC, hereinafter referred to as
"Tenant"
W I T N E S S E T H:
WHEREAS, as of the 4th day of June, 1998 Landlord and Tenant entered
into a certain Lease Contract (hereinafter referred to as "the Lease") for
certain Premises described therein and being the entire second floor of Xxxxx
000, xx 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx; and
WHEREAS, Landlord and Tenant desire to amend the Lease for the purposes
set forth hereinbelow in this First Amendment to Lease Contract;
NOW, THEREFORE, in consideration of the mutual covenants flowing to and
from each of the parties hereto, Landlord and Tenant hereby amend the Lease by
adding thereto and incorporating therein the following new Section 33 captioned
Landlord's Operating Expenses, as follows:
33. LANDLORD'S OPERATING EXPENSES. If in any Lease Year (the "First
Lease Year" being hereby defined as the first period of twelve (12) months
following the date on which Tenant is obligated under the Lease to commence
paying monthly rental, and a "Lease Year" being defined as the First Lease Year
and each twelve month period thereafter during the terms of the Lease) the
Actual Operating Expenses, as defined hereinbelow, exceed the First Lease Year's
Operating Expenses of the building in which the Premises are located (for the
purposes of Operating Expense calculations, the term "Building" shall include
the building in which the Premises are located and the common areas thereof
usable under the Lease by Tenant and its employees), Tenant agrees to pay
Landlord, as maintenance rent ("Maintenance Rent"), a Proportionate Share of
such excess Operating Expenses based on the ratio of the net rentable area of
the Premises to the net rentable area of the Building, which Proportionate Share
shall be deemed to be fifty percent (50%) and is hereinafter referred to as
"Tenant's Proportionate Share".
(a) For the purpose of calculating Maintenance Rent to be paid pursuant
to the terms of this First Amendment, within ninety (90) days following the end
of the second Lease Year and each Lease Year thereafter, Landlord shall compute
the actual amount of the Operating Expenses (the "Actual Operating Expenses") of
the Building for the Lease Year just ended and provide Tenant with a detailed
accounting of such Actual Operating Expenses. If the Actual Operating Expenses
so detailed for such preceding Lease Year exceed the First Lease Year's
Operating Expenses, Tenant shall, within thirty (30) calendar days following the
date of Tenant's receipt of such written notice from Landlord, pay to Landlord
an amount equal to Tenant's Proportionate Share of the excess of the Actual
Operating Expenses for such preceding Lease Year over the First Lease Year's
Operating Expenses.
31
(b) The term "Operating Expenses" shall include and be limited to
the reasonable (when compared to comparable office buildings in the Satellite
Boulevard/Sugarloaf office sub-market area of Atlanta, Georgia) costs of only
the following items of Landlord's expenses of operating the Building:
(i) The cost of all real estate taxes and assessments
levied or imposed with respect to the Building and the portion of the
real property on which the Building is located which the applicable
taxing authority designates as the tax parcel on which is situated the
Building;
(ii) The cost of water, sewer, gas, electricity, fuel,
light, heat, steam, natural gas and other utilities utilized in the
common areas of Building and in the Premises;
(iii) The cost of premiums of casualty, liability and other
insurance related to the Building;
(iv) The cost for security services for the Building, if
any;
(v) The cost of janitorial and cleaning supplies and
services for the Building;
(vi) The cost of window cleaning for the Building;
(vii) The cost of landscaping services provided for the
Building; and
(viii) The cost of services provided by Landlord and
attributable to the operation, repair and maintenance of the Building
to the extent required of Landlord under the Lease, including, without
limitation, any such services related to the heating, air conditioning,
ventilating, plumbing, electrical, elevator or other systems of the
Building.
(c) Upon reasonable prior written request at any time during
the term of the Lease, Tenant shall have the right to examine and audit
Landlord's books and records at Landlord's office in the Atlanta, Georgia area
with regard to all Operating Expenses shown in each of Landlord's xxxxxxxx to
Tenant. Landlord shall promptly reimburse Tenant for any overcharge and
overpayment revealed by such audit and, if such overcharge exceeds three percent
(3%) of the actual amount of Operating Expenses which should have been charged
to Tenant, Landlord shall also promptly reimburse Tenant for the reasonable cost
of Tenant's audit.
EXCEPT AS HEREINABOVE AMENDED, all of the terms, conditions and
provisions of the Lease shall be applicable, and the parties hereto shall be
bound thereby.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
32
IN WITNESS WHEREOF, Landlord and Tenant have duly set their hands and
seals, in duplicate, to this First Amendment to Lease Contract under seal as of
the day and year first written above.
As to Landlord: LANDLORD:
Signed, sealed and delivered in the
presence of: /s/ Xxxxxxx X. Xxxxxxx (SEAL)
----------------------------
XXXXXXX X. XXXXXXX
-------------------------------------
-------------------------------------
Notary Public (affix stamp and seal)
As to Tenant: TENANT:
Signed, sealed and delivered in the HEADHUNTERS, LLC
presence of:
By: Xxxxxxx X. Xxxxxx
-------------------------------
Title: CFO
------------------------------------- --------------------------
------------------------------------- By:
Notary Public (affix stamp and seal) ------------------------------
Title:
------------------------
(affix corporate seal)
